The Abuse of Halacha: Keeping Halacha under Control (2)

The purpose of Sefer Bereishit

In memory of Irma Lopes Cardozo-Robles z”l, NY A woman who lived by the teachings of Sefer Bereishit

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In deep sympathy with all those who were affected
by the raging fires in the Land of Israel *

Part 2

In my last essay, I questioned why so many highly unfortunate statements have been made, and even atrocities done, in the name of Jewish law – all in direct violation of the very notion and spirit of Halacha. These include the murder of former Prime Minister Yitzchak Rabin by Yigal Amir in 1995, and the murder of 29 Arabs in the Cave of Machpela by Baruch Goldstein in 1994. (1)

Publications such as the infamous Torat Hamelech, and the attempt to overrule an important decision by the Tzfat Rabbinical Court that freed a woman of her agunah status, are only a few examples.

I argued that what caused these ill-fated cases is the denial and rejection of the great moral values and religious message of Sefer Bereishit. It is in this sefer that the religious and moral foundations of Judaism were shaped. Only after these values were developed and deeply ingrained in the Jewish psyche was it possible for God to give the Jewish people the Torah and the Halacha.

Without these religious moral values, the Halacha could easily turn into a ruthless rule of law that would do more damage than good and would develop into a system that would make human life impossible, undermining the very purpose and ethics of the institution of Halacha. It is this problem, I believe, that caused the above-mentioned misfortunes and other tragedies.

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The foremost point of departure in any halachic decision must be that all people are created in the image of God and that all human life is holy. While different tasks, inclinations, and historical events should be recognized and allow for distinctions between people, no discrimination can ever be tolerated. Halacha should surely acknowledge that the Jews are different from other nations, but only as long as it recognizes that other nations can make contributions that Jews cannot. (2)

For Jews to be the chosen people, they need to recognize that this in no way can ever mean that they may look down on others. What it does mean is that they have an obligation to inspire the world, as a teacher inspires a student even while recognizing that the student may be more gifted than him or her.

It cannot be denied that throughout our long history this may have been forgotten and laws have appeared that have not always lived up to these standards. Even biblical laws seem to have violated this principle. On several occasions they demanded that Jews show no mercy for some gentile nations that dwelled near the Land of Israel in biblical times. (3) But a closer look makes it clear that these laws were contrary to the original divine plan and reveal some kind of divine concession to highly unfortunate circumstances. (4) The laws in question were meant to deal with these nations’ ongoing violence, immorality and virulent anti-Semitism, which had to be dealt with so that Jews could survive and uphold moral standards for the good of all humanity. (5)

Never can it mean that Jews are being told not to influence present-day gentiles to observe the Seven Noachide laws (since the total degeneration of the gentile nations is a prerequisite to the redemption of the Jewish people) on the basis of the scandalous argument that encouraging gentiles to keep these commandments generates “gentile merit” and will only prolong their stability and thereby delay our redemption. (6) Nor can it ever be permitted to encourage a Jewish doctor to apply euthanasia to a particular “primitive” gentile (7), or to forbid a blind man to receive a corneal transplant from a gentile, since the latter may have seen things that no Jew should ever see. (8)

All these rulings are as anti-halachic as they can be, violating the very cornerstones of Judaism and based on reckless ideas endorsed by those who invent them on their own and then promote them as Halacha without the backing of any authentic, traditional halachic source. They should be condemned and denounced using every means available to us.

Highly disturbing is the case concerning Israel’s arch-enemy, the Amalekites, the Nazis of biblical times. Divine law required the Jews to wipe this nation off the face of the earth, including women and children. Such a law runs contrary to our innate moral intuition and the very values promulgated by Sefer Bereishit. Commentators have therefore gone overboard to explain this law in different ways, since they were unable to accept that such a commandment could ever have come from God Himself. They even believed that God tested the Jews to see whether they would understand their calling and thus refuse to implement this genocide (9), similar to the way that Avraham refused to listen to God in the case of Sedom and Amora when he uttered the famous words: “Shall the whole world’s Judge not act justly?” (10) The commentators’ attempt is not apologetic, but rather the outcome of their absolute conviction based on Sefer Bereishit that there could be no other explanation. At a later stage, they decided that the nation of Amalek no longer existed and they could cancel the entire law. (11)

It is remarkable that the Sages seem to have reacted similarly with several other biblical laws, such as the case of the ir hanidachat, in which the commandment is to annihilate the entire Jewish population in a city rampant with idolatry and immorality. The law was declared inoperative from the very start. (12) Another example is the case of the ben sorer u-moreh, the rebellious son who had to be executed. Here, too, the law was declared defective and only seen as a way to teach some important moral lessons. (13) In other instances, they seem to have been of the opinion that laws such as those regarding the mamzer (a child from an incestuous relationship) and agunot (14) should be severely limited to make them almost inoperative, and they often looked for loopholes to find a way out. While it remains a question why they did not completely revoke these laws, it seems clear that in all these cases it was the overriding moral principles of Sefer Bereishit that motivated them. (15)

The Sages struggled, re-interpreted, and sometimes even abolished these laws because they fully understood that without the moral religious values of Sefer Bereishit, halachic chaos would reign and grave injustices would be done.

It is for this reason that one of the greatest tragedies of Judaism in modern times is caused by the fact that some halachic authorities, as well as people like Yigal Amir and Baruch Goldstein, forgot to study the first book of the Torah. They became so dedicated to the letter of the law and to misplaced religious sentiments that they did the inconceivable and caused the degradation of Halacha.

It is time for the rabbinical community to make it abundantly clear that no halacha can ever be implemented without it resting firmly on the values of Sefer Bereishit. Only in that way will a healthy halacha be guaranteed, and severe damage, evil, and the profanation of God’s name prevented.

Throughout the thousands of years, Israel’s Sages and religious leaders—unlike those of the Christians and Moslems—never called on their fellow Jews to wage religious wars against the gentile world. To them, this was a repulsive idea. If anything, they asked the Almighty to deal with their enemies. This matter stands out in all of Israel’s history. Let us be proud of that and not change the rules of the game, unless it is a matter of unequivocal self-defense.

************ Coming in next week’s Thoughts to Ponder.

1. In my last essay, I mentioned that this took place in a mosque. However, a friend of mine pointed out that this atrocity actually happened in the Cave of Machpela, the place where the Avot and Imahot (Patriarchs and Matriarchs) are buried. In fact, it occurred in the Ibrahimi Mosque in the Cave of Machpela. Rabbi Aharon Lichtenstein z”l, the former foremost leader of Modern Orthodoxy, and Rosh HaYeshiva of Yeshivat Har Etzion, condemned this atrocity in the strongest terms: “A person, whatever his former merits may have been, departed this world while engaged in perpetrating an act of awful and terrible slaughter, tevach ayom ve-nora, and thereby, beyond the crime itself, desecrated the name of Heaven, trampled upon the honor of the Torah and mitzvot, soiled and sullied the image of Knesset Yisrael, and endangered the future of [Jewish] settlement in Judah, Samaria, and Gaza….” See Tradition: A Journal of Orthodox Jewish Thought, 28:4 (Summer 1994), of the Rabbinical Council of America.

4. See my Thoughts to Ponder 514, “The Deliberately Flawed Divine Torah: The Theology of the Halachic Loophole,” in which I explain this concept in great length. TTP 514 LINK

5. Many rabbinical laws were instituted for similar reasons. They were mainly introduced as protective measures to ensure that Jews would not suffer at the hands of anti-Semites. At other times, laws were introduced to counter assimilation and undesirable non-Jewish influences. These laws seem to discriminate against gentiles, but in truth they were meant to protest against those gentiles who had low moral standards or were committed criminals, such as the Nazis in later days. These laws did not relate to well-mannered non-Jews. See the many observations of the great Talmudic commentator Menachem Meiri (1249-1316) in Beit HaBechirah – for example, his commentary on Sanhedrin 57a and Avodah Zarah 2a. Surely these laws should be abolished because they run contrary to the principle of divine equality as taught by the Torah. Perhaps any law that gives the impression that non-Jews are discriminated against, such as the law that non-Jews are allowed to do some work for Jews on Shabbat (the “Shabbos goy”), should be abolished, unless Jews will do certain work for gentiles that they can’t do, on certain occasions. The fact that the State of Israel is still dependent on the “Shabbos goy” is highly problematic and inconsistent with the principle of national independence. Daring and innovative rabbinical decisions are far overdue. Violating Shabbat to save non-Jews is an absolute obligation, notwithstanding the fact that some authorities have questioned this. There is no doubt that Avraham, Yitzchak, and Yaakov would have done so. See Netziv’s introduction to Bereishit in his Ha’amek Davar. See, also, my essay: TTP, 469 “Needed: Redemptive Halacha”; Link

8. See Rabbi Ovadia Hadaya, Teshuvot Yaskil Avdi, Yerushalayim, vol. 6, 1982, Yoreh Deah, no. 26, sections 6-9. See the strong objection to these rulings by Rabbi Ovadia Yosef, Teshuvot Yabia Omer, Yerushalayim, 1995, vol. 8, Choshen Mishpat, no. 11. The correct view is stated by Rabbi Israel Lipschitz (1782-1860) in his commentary Tiferet Yisrael on Avot 3:14. Rabbi Lipschitz states that the following gentiles were pious and will enjoy a share in the World to Come: 1) Edward Jenner (1749-1823), who discovered the vaccine against smallpox; 2) Sir Francis Drake (1540-1596), who (according to Rabbi Lipschitz) brought the potato to Europe, thereby saving many people from starvation; 3) Johannes Gutenberg (1398-1468), the inventor of the movable printing press; and 4) Johannes Reuchlin (1455-1522), who was a great friend of the Jews and put his life on the line in order to prevent the burning of the Talmud under the decree issued by the Viennese Emperor Maximilian, in the year1502. See The Messiah Problem by Rabbi Chaim Rapoport, Ilford, Britain, 2002/5762, p. 88. See, also, the beautiful observations by Chief Rabbi Avraham Yitzchak Kook (1865-1935), the famous Talmudist, halachic authority and kabbalist, in Igrot HaReiyah, Yerushalayim, 1961, no. 112 about the gentiles.

9. See Yoma 22b where King Shaul, who was commanded to kill the Amalekites (Shmuel I, chapter 15), exclaimed: “If the adults have sinned, what is the sin of the children?” According to one problematic source, God responded that he should not be overly righteous. But in Midrash Tanchuma, Tzav 3, God “changed His mind” after Moshe showed Him the injustice of the commandment [Devarim 7:1-2] to wipe out the women and children of the “seven nations more numerous and powerful” than they.

10. Bereishit 18:25.

11. Mishnah Yadayim 4:4; Brachot 28a.
There is even a tradition that the fulfillment of this commandment is deferred until the messianic age. See Radbaz on Rambam’s Mishneh Torah, Hilchot Melachim 5:5.

12. Devarim 13: 13-16; Sanhedrin 71a.

13. Devarim 21:18-21; Sanhedrin 71a.

14. Women who have not received a get (bill of divorce) and whose husbands have disappeared and it is unknown whether they are alive, or not. See, for example, Responsa Yabia Omer, Part 6, Even Ha’ezer, 3. (Today’s agunot are, for the most part, women whose husbands refuse to give them a get, for any number of reasons.)

15. For a discussion: Eliezer Berkovits, HaHalachah: Kochah VeTafkidah; short English edition:
Not in Heaven: The Nature and Function of Halakha (New York: Ktav Pub. 1983).

Questions to Ponder from the David Cardozo Think Tank.
(We suggest printing out and discussing at your Shabbat table, if you like)

1.The morality of Sefer Bereishit is seemingly ill-defined and unstructured. Would it be valuable to outline these morals predating Halacha within a structured codex, similar to the Shulchan Aruch? Or would this entirely defeat the purpose of Rabbi Cardozo’s argument?

2. The morality of Sefer Bereishit plays a central role in Rabbi Cardozo’s argument. On occasion, however, the behavior of our early forefathers is based on a set of earlier gentile laws and customs. For example, in Gen. 38:24, after hearing about her pregnancy, Yehuda sentences Tamar to death, though an unmarried woman is not halachically liable to this penalty. According to Rashbam 38:24 (and Ramban 38:8) this was part of an older custom applicable in pre-Torah times. It was abrogated with the giving of the Torah. In such cases, we see that the Halacha serves to protect Judaism from these older pre-Torah laws. How can we uphold the view that Bereishit morality should comprise the foundations of the Halacha, when in certain cases it is the Halacha that protects us from Bereishit morality?

3.When you personally study the narratives in Bereishit, do you feel you are absorbing messages about how to be moral and live an upright Jewish life that you do not gain from the study of halacha alone?

4.Rabbi Cardozo mentions that certain laws were created to protect Jews from the low moral standards of the surrounding nations. Yet alongside these there also exist laws whose sole purpose is to protect the Jews from assimilation, regardless of the moral standing of the surrounding nations (e.g. the injunction on wine touched by any gentile known as stam yeinam). Such laws appear highly discriminatory and unfair – but, given the high percentage of assimilation today, they may play a crucial role. Should we continue to observe these laws as they are, or might some modifications be constructively applied, or even other laws introduced, to match today’s circumstances?

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About Nathan Lopes Cardozo

Rabbi Dr. Nathan Lopes Cardozo is the Founder and Dean of the David Cardozo Academy and the Bet Midrash of Avraham Avinu in Jerusalem. A sought-after lecturer on the international stage for both Jewish and non-Jewish audiences, Rabbi Cardozo is the author of 13 books and numerous articles in both English and Hebrew. He heads a Think Tank focused on finding new Halachic and philosophical approaches to dealing with the crisis of religion and identity amongst Jews and the Jewish State of Israel. Hailing from the Netherlands, Rabbi Cardozo is known for his original and often fearlessly controversial insights into Judaism. His ideas are widely debated on an international level on social media, blogs, books and other forums.

Every week I receive hundreds of emails, as well as a host of important observations on my essays, via our website, Facebook, newspaper blogs, and other media outlets. It is therefore completely impossible for me to respond – for which I apologize – but please be assured that I read every comment, which I deeply appreciate and from which I learn so much. Only in exceptional cases will I respond in a subsequent essay. My office staff will try to be more prompt in posting these remarks on our website.

Thank you very much for taking the time to share your comments with me, as well as with your fellow readers. I hope you will continue to do so.

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